A TREATISE

ON THE

LAW OF SHIPPING AND ADMIRALTY.

CHAPTER I.

ON THE HISTORY AND ORIGIN OF THE LAW OF SHIPPING.

SECTION I.

ON THE PRINCIPAL FOREIGN CODES AND WRITERS WHICH TREAT OF

THIS LAW.

WHILE the common law of England was acquiring form and authority, the commerce of England was much less than that of some other of the states of Europe; and, in comparison with that of the same country in recent times, was slight and unimportant. Hence the principles of the common law are not adequate nor always applicable to the present exigencies of commerce.

There are occasional intimations, in even the oldest books of the law, that England had then shipping and merchants, and that questions in relation to ships came sometimes before the courts. Even in those ages, the usage of merchants was evidently — and sometimes expressly-referred to as a guide, if not a master, in cases of this kind. As, with the growing commerce of England, the questions grew more frequent, more diversified, and more important, this usage was referred to more and more constantly, and perhaps with increasing deference, until, out of this usage, or rather in conformity with it, but yet importantly modified by those rules of law with which the courts were most familiar, the law merchant of England gradually acquired force and authority.

Sometimes it is said to have grown up alongside of the common law. But, in fact, it was adopted step by step, as an integral part of the common law; and the flexibility of that system, and the vital force with which, as a living thing, it yielded to the new influences and supplied the new wants presented by successive changes in the condition of the people, are well illustrated by the way in which the law merchant became, to a very great extent, a part of the common law, and as such came over to this country, and is our law as it is that of England.

As this mercantile law was formed under the modifying, though not controlling, influence of the common law, so, on the other hand, it exerted a reciprocal influence upon the common law, through nearly all branches of the law of contracts. Thus the rules respecting sales, agency, parties, consideration, assent, and construction generally, all exhibit the clearest indications that the customs of merchants have produced important modifications of them. But the law of shipping, the law of marine insurance, and the law of negotiable paper, may be regarded as the principal topics which belong in an especial manner to the law merchant. They may be said to have had no other origin than the custom of merchants. The common law yielded somewhat slowly and reluctantly to their demands; and even when it adopted their customs, insisted upon the application of its own principles. In some instances these were retained and enforced, when they were incongruous, and incompatible with those customs; and sometimes the law merchant has suffered detriment from this cause, which has not, perhaps, wholly ceased to operate in England, or even in this country.

By the custom of merchants, which is thus regarded as the parent of the law merchant, is not meant merely the custom of English merchants at the time the English courts first took cognizance of these customs; and not merely the custom of English or American merchants at different periods from the beginning of the law merchant of England to the present day. For, if this were the case, we should have no other sources of authority for this custom, or for the rules derivable from it, especially in its earliest periods, than the brief and unfrequent cases in the early English reports in which questions of this kind are considered.

The common law has its old books of authority; and they are

numerous and excellent; Statham, Fitzherbert, Glanville, Brooke, Bracton, Fleta, Britton, Rolle, Sheppard, and at the head, perhaps, of all-Coke, give not only to the antiquarian, but to the student, for present and practical purposes, needed and trustworthy information. To these we may add the reports of adjudged cases, which exhibit with the utmost clearness the history of the law for six centuries. But, in the treatises and digests above enumerated, we find little that can indicate more than the existence of a law merchant, or of the custom of merchants. And, although the earlier reports are not quite so barren in this respect, the notices they give of the law merchant are scanty, and of comparatively little value.

We are not, however, destitute of authority and precedent for the earlier, and, as they may well be called, the fundamental rules, of this great branch of the law. Indeed, this authority ascends to a far remoter antiquity; and the books, to which we must refer for it, have two other important advantages over their brethren of the common law. One of them is, that they give us the rules, not of one people or country, but of the commercial world, and therefore they are more free from local and partial causes of error or limitation. The other is, that, founded as they were upon the experience, the necessities, and the usages of the merchants generally of the then civilized world, they are characterized by a profound rationality and an exact justice, which are seldom, if ever, materially affected by the rights or prejudices of caste or class, or by that devotion to, and perpetual consideration of war with, one's neighbors, which was the soul of the feudal system, and through that system, necessarily influenced and injured the whole body of municipal law in all feudal nations.

These books retain at this day their utility, if not their authority. And no lawyer should consider himself safe in his knowledge of the law merchant, who has not studied them, at the very least, enough to enable him to make use of them when professional exigencies require him to do so. These books are, those of the Roman civil law, the Consolato del Mare, the Laws of Oleron, the Laws of Wisbuy, Le Guidon, the Marine Ordonnance of Louis XIV., with the Commentaries of Valin, and the principal treatises on this branch of the law by Pothier and other eminent writers of continental Europe.

It is true that neither the civil law nor either of these earlier codes treats of negotiable paper; 1 for that was a later invention. But it is also true, that the laws of continental Europe in relation to bills and notes are of much and growing importance and utility in the investigation of the questions presented under our own law in reference to those instruments; and these European systems are based upon the civil law, and qualified by it, at least as much as our own law is by the common law.

A similar remark may be made of insurance; excepting that, as the law of marine insurance is obviously dependent upon the law of shipping, as, for example, in questions of wreck, jettison, average, and contribution, and maritime contracts generally, we may learn much that is now useful, not to say indispensable, for the understanding and application of the existing rules of insur ance law, from those earliest sources.

When we come to the law of shipping itself, we find at once that the present rules and principles, some even of those which might seem to be most peculiar, ascend to a higher antiquity than anything in the common law, or in any other existing system of law. Even the Roman civil law, in the rubric "De lege Rhodia de jactu," (Dig. 14, 2,) quotes and confirms the law of Rhodes concerning jettison. It would seem that this island possessed a flourishing commerce, at least a thousand years before the Christian era; that a system of law was there in force, which won a general acceptance in those ages, and was itself probably founded upon their established mercantile usages. Of this system we have preserved, certainly, only the fragment contained in the above-cited rubric ; for the collection of maritime laws which may be found in the commentary of Vinnius, under the name of the Rhodian Laws, is undoubtedly a later compilation. But in this fragment we have the modern law of jettison, average, and contribution, as distinctly státed as in any recent text-book. It is in these words: "Lege Rhodia cavetur, ut si levandæ navis gratia jactus mercium factus est, omnium contributione sarciatur quod pro omnibus datum est." And the whole title of the Digest about this rule is wise and instructive.

There are, however, many other rubrics of the civil law which relate to shipping, and are not traceable to any earlier origin. The 1 But see on this subject, Domat, Cushing's edition, sect. 1200.

rubric immediately preceding that just quoted, is, "De Exercitoria actione," of which the general purpose is to make the shipowner responsible for the acts of the master of the ship.

The rubric, "Nautæ, caupones, stabularii, ut recepta restituant," (Dig. 4, 9,) provides that mariners (limited, however, in the title to the master of the ship), and the keepers of inns and stables, should be responsible for property committed to their charge. And this is confirmed in the rubric, "Furti adversus nautas, caupones, stabularios." Dig. 47, 5.

The rubric," De nautico fœnore," (Dig. 22, 2, Code, 4, 33,) gives us the present rules which regulate loans on bottomry and respondentia.

In the rubric, "De incendio, ruina, naufragio, rate, nave expugnata," (Dig. 47, 9,) it is provided that fourfold damages should be paid by the plunderer of a vessel in distress.

In these rubrics there are provisions applicable especially to ships, and to those who own or navigate ships. And it should be added also, that, upon some other topics of deep interest in the law merchant, as payment, and imputation (or, as we term it, appropriation) of payment, carriage of goods, novation, loans and hiring of money, pledge, partnership, and finally the great topic of sales, the civil law is full of most profitable instruction.

It is perhaps to be regretted that the study of this system of law, which certainly deserves, if ever any system of law did, the proud title of "ratio scripta," is not more extensively pursued in this country. In England there was, formerly at least, a positive hostility to it; and it lingers there still, and may have come over to this country, and still exert some influence. If this were the proper place, it might not be difficult to show that it is at least questionable whether the common-law doctrine of sales, which, upon the central question, when and how the property or ownership in the thing sold passes from the seller to the buyer, is in direct antagonism with the civil law, is quite so well adapted to mercantile purposes; and whether, even now, a more extensive use of the civil law distinction between the jus ad rem and the jus in re would not assist in determining questions which must still be regarded as unsettled. If we do not mistake, there are some indications that the courts and the profession are beginning to find that the common law, which is ours by inheritance, may be use